HCYQ and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1273
•17 July 2017
HCYQ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1273 (17 July 2017)
Division:GENERAL DIVISION
File Number(s): 2017/2765
Re:HCYQ
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Regina Perton, Member
Date:17 July 2017
Place:Melbourne
The Tribunal declines the respondent's request under section 33A of the Administrative Appeals Tribunal Act 1975 that the applicant participate in the hearing by video and notes that the hearing is to take place in Melbourne with the applicant, witnesses, interpreter and respondent’s representatives to attend in person.
[sgd]........................................................................
Regina Perton, Member
PRACTICE AND PROCEDURE – Video conferencing – request by respondent for applicant to attend via video-link– applicant an unlawful non-citizen detained in immigration detention in Yongah Hill Detention Centre – applicant self-represented and requires the use of an interpreter – cost and inconvenience of transferring applicant to Melbourne from Perth – request declined
Legislation
Administrative Appeals Tribunal Act 1975 ss 33, 33A
Migration Act 1958 s 501
Cases
Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316
Saleh and Minister for Immigration and Border Protection (Migration) [2016] AATA 841
REASONS FOR DECISION
Regina Perton, Member
17 July 2017
HCYQ, an Indian citizen in his mid-fifties, arrived in Australia in March 2008 as a member of his wife’s family unit following the grant of a TU 573 student visa to his wife. HCYQ’s wife was granted a VC 487 skilled regional sponsor visa in November 2013 as was he as part of her family unit. HCYQ and his wife have two dependent sons. The family has lived in Victoria since arriving in Australia.
HCYQ has been convicted of family violence crimes and has served time in prison for the offences. After his prison term ended, HCYQ was taken into immigration detention, initially at Maribyrnong in Melbourne, then to Christmas Island and now at Yongah Hill near Perth. His wife and children remain near Melbourne. There have been intervention orders in place preventing HCYQ from approaching his wife and children. HCYQ states that he has had telephone and mail contact with his wife and children whilst in detention.
HCYQ applied for a protection visa (subclass 866) on 3 February 2017. The Minister’s delegate refused the application on 8 March 2017. The Tribunal understands that HCYQ sought review in the Migration and Refugee Division of this Tribunal.
On 9 February 2017 HCYQ applied for a Bridging E (Class WE) visa in association with his application for the protection visa lodged on 3 February 2017. The bridging visa application was refused on 6 April 2017 by the Minister’s delegate but HCYQ was not notified of the decision until 8 May 2017. The application for the visa was refused on the basis of HCYQ not meeting the character provisions set out in s 501 of the Migration Act 1958 (the Act). On 14 May 2017 HCYQ lodged an application for review with the Tribunal in relation to the refusal of the bridging visa.
HCYQ lodged the application for review with the Perth registry of the Tribunal. On 31 May 2017 Deputy President Dr C Kendall made a direction under section 33 of the Administrative Appeals Tribunals Act 1975 (the AAT Act) that the application for review be transferred to the Melbourne Registry of the Tribunal. The matter is listed for hearing on 24 July 2017. The regulatory regime requires the case to be finalised within 84 days of notification of the visa refusal, namely 31 July 2017.
On Thursday 8 June 2017 a directions hearing by telephone was held by Deputy President Forgie. The notes of the directions hearing taken by the Deputy President’s associate indicate that at that time, the presumption was that …as things stand would expect to see him here in Melb.
On Friday 7 July 2017 the respondent’s counsel provided a submission in support of an application under section 33A of the AAT Act to have HCYQ participate in the substantive hearing by means of other electronic communications equipment, namely the use of video-conferencing. Accompanying the submission was a witness statement dated 7 July 2017 from a departmental officer, Mr David Henderson, who has …responsibility for assisting with management of placement and movement of persons in immigration detention across the national network of detention facilities.
In an email which accompanied the submission sent late on a Friday afternoon, the respondent’s solicitor stated that …the respondent also requests the opportunity to be urgently heard in relation to this request. The respondent’s solicitor also stated:
We also respectfully request that written reasons be produced in relation to the s 33A application. In this regard, we note that Deputy President Forgie produced written reasons in Saleh v MIBP [2016] AATA 841, which also involved a request under s 33A that the applicant participate in the hearing by videolink.
The Tribunal arranged for an urgent directions hearing which took place by videolink on Wednesday 12 July. HCYQ was in Yongah Hill, counsel and the instructing solicitor and the Tribunal in the Melbourne registry. It was difficult to arrange for a Punjabi interpreter on short notice so communication was facilitated by an interpreter via the telephone. The Tribunal conducted the directions hearing by video link to enable testing of the quality of the line between Yongah Hill and the Melbourne registry. There were no glitches as regards to the quality of the picture although the room and camera set up at Yongah Hill resulted in HCYQ being some distance from the camera and his facial expressions were not clearly discernible. Additionally, there was a two or three second delay in the sound and picture being sent and received from Yongah Hill, which compounded the difficulties experienced in communicating effectively with the Applicant during the directions hearing. Because of these equipment difficulties at the Melbourne end, the Tribunal sat at the bar table utilising a shared hands free phone and moving the telephone and microphone so that HCYQ and the interpreter could hear counsel and the Tribunal.
Asked whether he was satisfied to appear by video-link, HCYQ said he wished to appear in person. He stated that he intended to have four witnesses give evidence in person. HCYQ said that it was difficult to hear everything that was said due to variability in the sound quality. Counsel commented that having the interpreter on the telephone had probably added to the difficulty and noted that the Tribunal had stated it had booked an interpreter to attend the Melbourne registry in person for the substantive hearing.
THE RESPONDENT’S SUBMISSION REGARDING S 33A
Counsel for the respondent, Ms Catherine Symons acknowledged that the Tribunal can control its own proceedings (s 33 of the AAT Act) and to the general obligation in s 39 of the AAT Act which states:
(1)Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
Ms Symons pointed to the word reasonable in s 39 and submitted that the Tribunal, which is not bound by the rules of evidence, could be more flexible than a court in relation to whether an applicant and witnesses attended in person. Citing comments in the decision of Deputy President McCabe in Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316 (Labi), Ms Symons stated in her written submission:
…
8. Ultimately, when determining whether to exercise its discretion under s33A(1) of the AAT Act, the Tribunal must undertake a balancing exercise and decide ‘what will best serve the administration of justice consistently with maintaining justice between the parties’...
9. The respondent submits that in the course of this evaluative assessment should be borne in mind that the requirement for the parties to have a ‘reasonable’ opportunity to present their respective cases does not mandate that such opportunity achieve a level of unqualified perfection. Instead, each party (whether that be applicant or respondent) should have a fair opportunity to present his or her case, having regard to practical, economic and other relevant constraints and impediments, that operate in the context of the particular case… The circumstances of each application must be considered on their merits and not, on the basis of a fixed predisposition for or against taking evidence by video or other remote means…
Ms Symons submitted that there were three broad categories relevant to the exercise of the Tribunal’s discretion, namely accommodation; travel costs associated with the transfer of the applicant; and security.
In relation to accommodation, Ms Symons stated that if HCYQ was required to travel to Melbourne to attend and participate in the hearing there would be a need to accommodate him in Melbourne for a period of two nights. She stated that there was only one facility in Melbourne that could accommodate HCYQ, namely the Maribyrnong Immigration Detention Centre (Maribyrnong IDC). Ms Symons stated that at the date of her submission that centre was operating at just under maximum contingency with only five beds vacant. She stated that whilst HCYQ could be temporarily accommodated at Maribyrnong in the event the Tribunal required him to attend the hearing in Melbourne…the consequence of such an arrangement (albeit of limited duration) would be to compromise the safety and good order of the facility.
Mr Henderson, in his witness statement dated 7 July 2017, stated in relation to the Maribyrnong IDC:
21. The only detention facility in the Melbourne area within the immigration detention network is the Maribyrnong Immigration Detention Centre (MIDC). The MIDC is primarily designed to accommodate low to high risk detainees.
22. As at 6 July 2017, MIDC is currently sitting at 124% capacity (94 detainees) and operating in contingency. The maximum contingency capacity is 99 detainees. If ordered by the Tribunal, the applicant could be accommodated temporarily under surge conditions. This is not preferred as it impacts on the safety and good order of the facility. Risks associated with overcrowding and facilities include: increased security risks, potential health and well-being concerns of detainees and a decrease in access to personal amenities, programmes and activities provided to detainees.
23. It is also necessary that these five beds are kept vacant for scheduled prison releases and unplanned compliance activity, including detention events by police conducting immigration status checks.
In relation to travel and costs of travel, one of the three categories raised by Ms Symons, Mr Henderson spelled out what he believed the costs would be. These included approximately $750 return flight for HCYQ on a commercial airline and the same amount each for two security escorts. There would also be hotel costs for the security escorts.
In relation to the third category raised by Ms Symons, Mr Henderson stated that HCYQ had been rated as high risk for the purpose of aviation transport, placement and escort. Mr Henderson presented a risk assessment dated 24 May 2017 as an attachment to his statement. The assessment states it has been prepared in relation to an international charter flight. Whilst HCYQ was not expected to need restraint during the flight, disrupt other passengers or likely to attempt to escape during transportation, the assessment notes that he has been known to have a history of violence based on his convictions and on incidents that occurred as a result of disputes with other detainees.
Mr Henderson also provided a Security Risk Assessment prepared by a Serco officer apparently on 9 May 2017 which rates HCYQ as high risk on aggression/violence, criminal profile, DSP placement risk and DSP escort risk but low on demonstration, escape and self harm. Amongst the comments in the report are that HCYQ has been identified by staff as arrogant and disrespectful with a gaol mentality, however he has been noted as ‘polite and respectful’ when dealing with the Welfare Staff. Mr Henderson also provided additional documents describing in more detail the nature of the incidents that included abusive language, possessing items to which he was not entitled. All of the incidents in the Client Incident Reports prepared by the staff of the detention centres have been classified as minor.
HCYQ was identified as requiring at least two security escorts based on his criminal history and risk rating. The total cost of the flights and accommodation for security was identified as being just over $2,000.
After discussing the issues of accommodation, travel costs and security, Ms Symons stated in her submission:
16. Having regard to the particular matters identified above, the respondent submits that the administration of justice will be best served in circumstances where the applicant is required to participate in the Tribunal hearing remotely from his present location at Yongah Hill IDC. The infrastructure and equipment that is available at Yongah Hill IDC comprises video-conferencing facilities, land-line telephones and internet rooms. The video-conferencing facilities available at Yongah Hill have been used on a number of occasions by applicants for review who have participated remotely in proceedings of this Tribunal, as well as other proceedings. In 2016, the department conducted a review of its video-conferencing facilities across the detention network, including at Yongah Hill, to ensure the quality and reliability of the facilities. The Tribunal should expect that the infrastructure and equipment will contribute to, rather than detract from, the ability of the applicant to prosecute his application and the capacity of the Tribunal to assess the applicant and his evidence. The respondent will use all reasonable endeavours to facilitate the smooth operation of the hearing.
17. As the applicant has not indicated (as of 6 July 2017) that he proposes to call any witnesses, and that he does not currently have the assistance of a lawyer, the question of whether the applicant will be afforded procedural fairness in the presentation of his application is necessarily limited to an assessment of the opportunity afforded to the applicant to communicate with and be assessed by the Tribunal. It is anticipated that the applicant will have the benefit of an interpreter co-located with him at Yongah Hill IDC, who will facilitate his interactions with the Tribunal. Further, and as noted above, the applicant will have the use of quality hearing facilities and infrastructure at Yongah Hill IDC that will have the result that there is no relevant or foreseeable denial of any opportunity to the applicant that will arise by virtue of his participating remotely in the forthcoming hearing of his application.
In her oral submissions, Ms Symons maintained the views expressed in the written submissions. She noted the clarity of the picture and suggested the use of a last-minute telephone interpreter had some impact on the running of the directions hearing. She suggested the relevance of the Labi decision cited earlier and a decision of Deputy President Forgie in Saleh and the Minister for Immigration and Border Protection (Migration) [2016] AATA 841.
HCYQ’S ORAL SUBMISSIONS
HCYQ stated that he wished to use the Punjabi interpreter and did so throughout the proceedings. He also stated that he intended to call four witnesses to give evidence on his behalf, namely his wife, a minister of religion who has provided a past reference for him and two neighbours. HCYQ anticipated that they would all give evidence in person.
HCYQ believes that he has been wrongly classified as high-risk. He said he was escorted to the hospital each week for treatment for medical conditions and there had been no difficulties or concerns on the part of the security escorts. He also said that in one of the incidents that had been reported as taking place in the detention centre involved him defending himself from someone who had a weapon. Another involved him being treated less favourably than another detainee in relation to meal distribution.
HCYQ was adamant that it would be difficult to conduct his side of the proceedings, including questioning the witnesses, by video-link from Yongah Hill.
CONSIDERATION
As indicated earlier, the use of an interpreter on the telephone in the directions hearing caused some communication difficulties for all involved, including the interpreter. Contrary to Ms Symons’ understanding, it is not usual for the interpreter to be at the detention centre during a Tribunal hearing, rather the interpreter is usually physically present at the Tribunal’s premises. It is much easier for an interpreter, the parties and the witnesses including the Tribunal, to be in the one room when an interpreter is utilised. One of the difficulties experienced when all the parties are not in the one room is getting the person speaking to stop at reasonable intervals to allow the interpreter to catch up. When one is in the same room, the Tribunal or the interpreter can sometimes use hand signals or facial expressions to get the person to stop to enable translation. It is far more difficult by telephone or video-link. In this instance, the evidence given by the witnesses, the questions and submissions by the respondent’s counsel and the Tribunal is likely to need to be translated, which is much easier to manage when all the participants are in the one room.
In this matter HCYQ is representing himself. The respondent’s representatives will be in the hearing room in Melbourne as will the interpreter and the witnesses. If he were represented by a lawyer or migration agent in Melbourne who was questioning him and the witnesses, the fact that he was appearing by video-link may have had lesser consequences than in the circumstances of this case. The questioning of HCYQ, including cross-examination, and that of his witnesses, will be far easier all round, for all the parties, not just HCYQ, to have him present in the same room.
In Saleh, the applicant was in the Perth Immigration Detention Centre. DP Forgie decided not to grant the application under s 33A of the AAT Act to have Mr Saleh appear by video-link and directed that the matter be heard in the Perth Registry of the Tribunal where Mr Saleh could attend in person with an interpreter in the presence of the member constituted to hear the matter. His pro-bono solicitor was to attend in Melbourne along with some witnesses. DP Forgie highlighted many of the difficulties in achieving an appropriate outcome at paragraph 40 of Saleh:
Where should the hearing be held?
40.This issue has proved an extremely difficult issue to resolve. The difficulties arise from the decision to relocate Mr Saleh to an immigration detention centre outside of his home State. I realise that this is occurring with increasing frequency and the difficulties caused to the Tribunal in trying to manage the applications for review lodged by persons in that situation are increasing exponentially. One form in which those difficulties manifest themselves is in the disproportionate workload imposed on the Perth Registry. That can be solved at an administrative level by a direction under s 18B but such a direction must necessarily leave room for the consideration of the particular needs of a case. The difficulties are greater when trying to arrange a hearing that will afford procedural fairness to both the applicant and the Minister. For an applicant, the difficulties can take various forms but the most immediate is that he or she is taken away from his or her family, friends and support groups generally. While I realise that the powers relating to immigration detention rest with the Minister under the Migration Act and not with the Tribunal, I ask whether it is possible to formulate a management strategy that takes into account the need to enable applicants to pursue the rights of review that they have been afforded by Parliament under the Migration Act when read with the AAT Act.
In Saleh, the location of the hearing was resolved by directing that the applicant appear in person at the Perth registry of the AAT where the member and the interpreter would also be located. It was also not an expedited matter, unlike this case, so it was possible to reschedule the hearing. In this instance, the Deputy President in Perth has directed that the hearing be in Melbourne where HCYQ lived, where he committed his crimes and where his witnesses and family live.
In Labi, DP McCabe explained the dilemma facing him in that matter:
12…. The public has every right to expect the power to cancel or refuse visas will be exercised deliberately and rigorously given what is at stake. I am not just concerned about being fair to the applicant, although that is obviously of critical importance. I need to give myself the best opportunity to see the applicant clearly so I can make the correct and preferable decision. That is an awesome responsibility.
13. It must also be recalled we are not dealing with a mere witness. We are talking about the applicant himself. If an applicant is represented, and his representative is unable to be with him at the remote location, he will have more difficulty giving instructions. If he is unrepresented, it may be more difficult for him to understand and engage with the process or question witnesses or read documents that he may not have in front of him. That is a particularly serious risk if he has a poor command of English. (It is important to understand the Tribunal does not have access to sophisticated, broadcast-standard technology. The video quality is not especially good. The applicant is unable to see the whole of the hearing room: he can only see who or what the camera is focused on at a particular point. At a minimum, that makes it difficult to follow an exchange between a legal representative or witness and the presiding member.) …
The Tribunal notes, as did DP McCabe in Labi, that the quality of the video equipment is improving all the time. Whilst the quality may well have improved at the detention centres, as submitted by Ms Symons, there is the issue of the calibre of the Tribunal’s equipment as well. Whilst the Tribunal has noted an improvement here in recent times, there have still been some situations where there has been a temporary loss of picture or sound with the need to reconnect or where the picture and sound are out of sync.
The Tribunal appreciates the issue of the cost and inconvenience of transferring HCYQ back to Melbourne as well as the security and personnel implications. The Tribunal notes, however, that the respondent’s representatives are already in Melbourne and that the witnesses and interpreter will also be in Melbourne.
In this particular case, with an applicant who is self-represented and the utilisation of an interpreter, the Tribunal is satisfied that the preferable outcome is to deny the respondent’s request to have the applicant appear by video-link for the hearing on 24 July 2017.
DECISION
The Tribunal declines the respondent's request under section 33A of the Administrative Appeals Tribunal Act 1975 that the applicant participate in the hearing by video and notes that the hearing is to take place in Melbourne with the applicant, witnesses, interpreter and respondent’s representatives to attend in person.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the written reasons herein of Regina Perton, Member
[sgd].....................................................
Associate
Dated 17 July 2017
Date of directions hearing 12 July 2017 Applicant By video-link Counsel for the Respondent
Advocate for the Respondent
Ms Catherine Symons
Mr Adam Cunynghame
Solicitors for the Respondent Sparke Helmore
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